SM Anwar Hossain Vs. Md. Shafiul Alam (Chand) and another

SM Anwar Hossain  (Appellant)

Vs.

Md. Shafiul Alam (Chand) and another (Respondents)

Supreme Court

Appellate Division

(Criminal)

Present:

ATM Afzal CJ                                                            

Mustafa Kamal J                                                                             

Latifur Rahman J                                                      

Bimalendu Bikash Roy Choudhury J                                                           

AM Mahmudur Rahman J  

Judgment

February 3, 1999.

The Negotiable Instruments (Amendment) Act, 1994 (XIX of 1994), Sections 138 & 141

The Code of Criminal Procedure, 1898 (V of 1898), Section 561A

In order to make a person liable under section 138 of the Act the payee has to comply with the requirements under that section and the case has to be filed within specified time. But subsequent allegations will not save limitation because the requirements under law is that the complaint has to be filed within one month of the date on which cause of action arises under clause (c) of proviso to section 138. Admittedly the petition of complaint was filed long after that date (on which cause of action arose) and thus cognizance could not be taken upon such complaint which was liable to be quashed……………(8,10,11 & 13)

Lawyers Involved:

Mansur Habib, Advocate, instructed by Md. Abu Siddique, Advocate-on-Record — For the Appellant.

Abdus Sobhan, Advocate, instructed by Md Aftab Hossain, Advocate-on-Record — For— Respondent No. 1.

Not represented — Respondent No. 2.

Criminal Appeal No. 09 of 1997.

(From the judgment and order dated December 1, 1996 passed by the High Court Division, Dhaka in Criminal Miscellaneous Case No. 5622 of 1996).

Judgment:

      ATM Afzal CJ.- This appeal by leave arises out of a judgment and order dated 1st December, 1996 passed by a Division Bench of the High Court Division rejecting an application for quashing of the proceeding of CR Case No. 227 of 1996 pending against the accused-appellant in the Court of Magistrate, First Class, Rangpur under section 138 of the Negotiable Instruments (Amendment) Act, 1994, briefly, the Act.

2. Respondent No. 1 as complainant filed a petition of complaint on 18 April, 1996 alleging, inter alia, that the accused appellant, a Contractor of the Water Development Board at Rangpur, used to take loan from the complainant, that in connection with one of his works, the appellant requested the complainant to work as a Coordinator and a contract was executed, that the appellant took Taka 6,00,000.00 as security money from the complainant, that the appellant withdrew bills on several occasions but did not return the security money to the complainant in spite of repeated demands whereupon the complainant sent a legal notice on 5-12-95, that on 21-12-95 the appellant in presence of witnesses handed over a cheque of Taka 6,75,000.00 drawn on National Bank, that the complainant deposited the cheque on 23-12-95 in his account at Uttara Bank but the same was dishonoured on the same date, that on 24-12-95 the complainant sent a legal notice for payment of the said amount, that on receipt of the said notice the appellant in order to avoid payment fraudulently informed the complainant through lawyer on 4-1-96 that he had lost the cheque written in the complainants name and made a GD entry in that behalf, and that it was clear from the conduct of the accused that he was a cheat and he created the story of losing the cheque in order to fraudulently misappropriate the money of the complainant.

3. The learned Magistrate on the aforesaid allegations took cognizance under section 138 of the Act and issued process against the appellant whereupon the appellant appeared before the Court and obtained bail on 19 September 1996.

4. The appellant filed an application under section 561A of the Code of Criminal Procedure for quashing the aforesaid proceeding and, as already noticed, the High Court Division by the impugned order summarily rejected the said application. Now this appeal from the said order.

5. It appears that it was argued before the High Court. Division that taking of cognizance of the alleged offence by the learned Magistrate was in violation of clause (b) of section 141 of the Act and, as such, the proceeding was liable to be quashed. The High Court Division did not accept the contention raised by the appellant upon ground which we find to be thoroughly unintelligible. Leave was granted to consider whether the High Court Division summarily rejected the application for quashing of the proceeding due to lack of appreciation of the point raised.

6. In order to appreciate the said point raised by the appellant reference may be made to the relevant provisions of the Act. Section 138 provides for punishment for dishonour of cheque for insufficiency, etc. of funds in the account. Proviso to the section, however, is as follows:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

7. Section 141 of the Act relates to cognizance of offence under the Act and reads as follows:

141. Cognizance of offence.— Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898)—

(a) no Court shall take cognizance of any offence punishable under section 138 except under a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clauses (c) of the proviso to section 138;

(c) no Court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence punishable under section 138.

The appellant contends that the complaint in the present case not having been made in terms of clause (b) of section 141 i.e., the complaint not having been filed within one month of the date on which the cause of action arose under clause (b) of the proviso to section 138, he taking of cognizance was illegal and, therefore, the proceeding is liable to be quashed.

8. In order to make a person liable under section 138 the payee of a cheque has to give a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid in terms of clause (b) to the Proviso. The drawer of the cheque is obliged to make the payment within 15 days of the receipt of the said notice failing which the cause of action for prosecution will arise under clause (c).

9. Now, in this case, the complainant’s case is that the cheque was issued by the appellant on 21-12-95 which was presented for encasement on 23- l2-95 but it was dishonoured on the same day whereupon the complainant issued notice to the appellant on 24-12-95 for payment of the money for which the cheque was issued.

The cause of action for prosecution will arise under clause (c) of the proviso to section 138 on the failure of the appellant to pay the amount within 15 days of the receipt of the notice of the complainant. The question is, when did the appellant receive the notice and did he pay within 15 days of the receipt of the notice? The relevant portion of the complaint reads thus:

“BANGLA”

10. It is the argument of the appellant that on the complainant’s own case the appellant must be fixed with notice for payment at least from 4- 1-96 and after the expiry of 15 days from that date, i.e., from 19-1-96, the cause of action should be taken to have arisen due to non-payment within the said period and the complaint was required to be filed within one month from the said date (19-1-96) in compliance with clause(b) of section 141. Admittedly the petition of complaint was filed long after that date i.e., on 18-4-96 and thus cognizance could not be taken upon such complaint.

11. The complainant has alleged many other things in his petition of complaint including that the accused-appellant had assured him of payment of the money on 11-4-96 over telephone and the appellant having failed to keep his word, the complaint was filed on 18-4-96. The subsequent allegations will not save the limitation because, as noticed above, the requirement under the law is that the complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138.

12. Mr. Abdus Sobhan, learned Advocate for the complaint-respondent, realising the legal position almost desperately argued that there is no clear assertion in the petition of complaint as to when the notice for payment sent by the complainant was actually received by the appellant and, as such, the countdown of 15 days has not yet begun for a cause of action to arise although it is true that the complainant became aware of the appellant’s refusal to pay on 4-1-96. If this argument of Mr Sobhan is accepted then it has to be conceded also that the cause of action for filing a complaint has not yet arisen because 15 days will have to transpire from the date of receipt of the notice by the appellant. The complainant obviously could not file the present complaint without the cause of action having arisen, the argument of Mr Sobhan is apparently self-defeating and the complaint cannot be saved in any case.

13.Unfortunately, the High Court Division failed to appreciate this simple point raised before it and wrongly rejected the application for quashing summarily under a misconception.

For the reasons this appeal is allowed and the impugned proceeding is quashed.

Ed.

Source: 51 DLR (AD) (1999) 218

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